Women in Prison : a report by the Anti–Discrimination Commission Queensland

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7.1 Power to conduct strip–searches

The ADCQ understands that both male and female prisoners are subjected to the same regime of strip–searching and that there is no difference between male and female prisoners in the procedures for strip–searching and the occasions or frequency of when it occurs.

The CSA permits officers to search prisoners in a number of ways and in a variety of circumstances. The searches are listed as scanning, personal, strip, and body.[113]

The CSA states that a strip–search means:
a search in which a prisoner removes all garments during the course of the search, but in which direct contact is not made with the prisoner.

Routine strip–searches of female prisoners are conducted each day in the secure facilities of BWCC and the TWCC, pursuant to a written directive issued by the Chief Executive of the DCS.[114] The directive states that strip–searches must occur when the prisoner:

• enters the prison, a crisis support unit or health centre under a crisis support order;

• is identified as being at risk under the suicide prevention procedures;

• begins to receive special treatment under a special treatment order;

• is about to begin separate confinement;

• is about to be transferred or removed from the prison;

• has had a contact visit with a personal visitor; and,

• is about to provide a test sample of urine.[115]

The person in charge of the prison has discretion to forego a strip–search as set out in the directive, if, because of the prisoner’s exceptional circumstances, the person in charge considers a strip–search unnecessary.[116]

In addition, the person in charge of a prison can order a strip–search if there is a reasonable suspicion that a prisoner in any facility is hiding a prohibited item [117] or a belief that strip–searching is necessary for the security and good order of the prison, or safe custody and welfare of the prisoners.[118]

The CSA states that a strip–search must be carried out by at least two corrective services officers of the same gender as the prisoner. Searching officers are required to ensure, as far as reasonably practicable, that the way in which the prisoner is searched causes minimum embarrassment.

Officers must take reasonable care to protect the prisoner’s dignity, and carry out the search as quickly as reasonably practicable, and allow the prisoner to dress as soon as the search is finished.[119] The person in charge of the prison must establish a register that records the details of each strip or body search, including the names of the persons present, and details of anything seized from the prisoner.

The process of a strip–search is that:

• the search is done in two steps known as a 'top and tail';

• prisoners strip the top half of their body;

• the top half of their body is searched;

• prisoners replace their clothing; and

• the process is repeated for the lower half of the body.

The ADCQ has been advised by the DCS that official search procedure does not require a prisoner to squat when they are strip–searched. However, some female prisoners gave details of occasions when they had been asked to squat at the time of a search.

As a general rule, a woman who is menstruating, is not routinely required to remove a tampon during a search, but may be requested to do so if a prison officer has a reasonable suspicion the prisoner is hiding a prohibited item.

A body or cavity search is only permitted to be performed by a doctor in the presence of a nurse, at least one of whom must be the same gender as the prisoner. A strip–search can only be conducted within the view of a security camera if the person viewing the monitor is of the same gender as the prisoner. There are limitations on who may view a recording of a prisoner being strip–searched.

Routine strip–searches are not generally performed on women in low or open security prisons, unless a prison officer has a reasonable suspicion a prisoner is hiding a prohibited item. In low and open facilities, women are able to have contact visits without being routinely strip–searched after each visit.

Inter–prison visits and strip–searches
A woman prisoner will be required to undergo four strip–searches if she is visiting a prisoner in another prison facility and returning to the BWCC or the secure area of the TWCC. It has been reported to the ADCQ that female prisoners are permitted to visit male prisons, but that male prisoners do not visit female prisoners in female prisons.

The ADCQ has been advised by the DCS that the reason for this is that visiting facilities at the male prisons are more amenable to inter–prison visits than those at female prisons. Whatever the reason for the practice, this does mean that women visiting a male prisoner will be subjected to four routine strip–searches, where the male prisoner being visited is only subjected to one. This could be the basis of a complaint of discrimination by a female prisoner who may be able to establish that she is being treated less favourably on the basis of her sex than male prisoners, in the same or similar circumstances.

Crisis support units and strip–searches
Crisis support units (CSU) and detention units (DU) of women’s prisons are designated as sterile areas. Until late 2005 a routine day for a prisoner in the CSU in BWCC would entail:

• 7.30am let out of cell, strip–searched, breakfast;

• 11.00am strip–searched, locked down in cell;

• 12.15pm strip–searched, lunch;

• 4.00pm strip–searched, locked down in cell;

• 5.10pm strip–searched, dinner;

• 6.10pm strip–searched, locked down in cell.

Any prisoner who has to leave for any reason will be strip–searched on exit and re–entry, including re–entering their cell after being in the shared areas such as the yard. For instance, if a prisoner goes to the educational unit or to the health centre, she will be searched on return to the CSU or the DU. This means women in these units can be subjected to repeated strip–searching in a routine day.

If a woman is detained in the padded cell within the CSU, she is generally held in a totally naked state, and has no clothing on at all.

In December 2005, the DCS advised the ADCQ that in relation to the CSU:

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7.2 Rationale for strip–searches

The rational for conducting prisoner searches of any kind is that they are:

The major objective of conducting searches is to prevent the entry of illicit drugs and other prohibited items, including equipment that could be used to escape from prison, or used for self or other types of harm.[120]

The women prisoners’ advocacy group Sisters Inside Inc has questioned the effectiveness of strip–searches, and argues that out of the 41,728 strip–searches that were conducted in a three year period from 1999 to 2002 in the BWCC, only two searches discovered any significant contraband. Sisters Inside Inc has also observed that illegal drugs are still available in the prison. The DCS says that such arguments ignore the deterrent effect of strip–searching.

The ADCQ has not enquired how drugs enter prison. It is apparent that drugs are entering and being used in secure prisons in spite of the rigorous strip–searching regime currently imposed by prison authorities.[121] If there is any evidence that drugs are entering prisons through means other than prisoners and their visitors, prison authorities must consider the need for more frequent and rigorous searches of staff and other persons entering prisons.[122]

The justification for the high number of strip–searches of women prisoners in CSUs or DUs is the need to maintain them as sterile areas. There is a high level of concern by prison authorities that prisoners in these units do not have any opportunity to acquire objects that could be used to harm themselves. The ADCQ has been told of instances where a staple from a magazine, a flake of paint, and a prisoner’s toenail have been used as implements to self–harm.

Physical self–harm by any prisoner ought to be of high concern to prison authorities who have a legal duty of care to each prisoner in custody. Prisoners experiencing higher than usual levels of stress or a mental health or other crisis, are very vulnerable to self–harm, especially within the first few hours of entering custody.[123] Even so, suicides still occur in prison causing much grief and stress to families, loved ones and associates of the person concerned.

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7.3 Effect of strip–searching on women in prison

The Queensland Women Prisoners’ Health Survey indicates that a high number of female prisoners report sexual abuse prior to the age of 16 years (37%). An even higher number reported some form of non–consensual sexual activity (42.5%). In a number of cases, the abuse occurred before the age of 10 years (35%). More than a third of these abused women were subject to multiple episodes of attempted or completed intercourse before the age of 10. Among the women who had been sexually abused, the abuse continued in some cases for more than five years. [124]

By contrast in the greater population, 8.8% of Queensland women aged 18 or more report being the victim of rape or sexual assault.

Being compulsorily required to strip–search in front of prison officers is a demeaning and humiliating experience for any human being, male or female. Even if a strip–search is conducted in a totally professional and impersonal manner, the humiliation is compounded by the fact that prisoners then have to be supervised and relate on a daily basis with prison officers who have observed them in a naked and vulnerable state. In our western society where public nakedness is far removed from the accepted norm, this immediately reduces the dignity of any relationship between the prison guard and prisoner.

However, for a woman who has been sexually abused, strip–searching can be more than a humiliating and undignified experience. In some instances, it can re–traumatise women who have already been greatly traumatised by childhood or adult sexual abuse. The vast majority of female prisoners who spoke to the ADCQ said strip–searching diminished their self–esteem as human beings and greatly emphasised feelings of vulnerability and worthlessness. Strip–searching can greatly undermine the best attempts being made by prison authorities to rehabilitate women prisoners, through programs and counselling to rebuild self–esteem, cognitive and assertiveness skills.[125]

A number of women, including those serving long sentences, told the ADCQ they elected not to have contact visits at all because of their strong objections to being strip–searched. This is almost an impossible choice for women with children, who, in their attempts to maintain their relationships with their families, must have contact visits.

Many prisoners, even those with a low or open security classification, are subjected to routine searches simply because they are being held in a secure prison. If these women were placed in the least restrictive environment possible, that is, with only low and open security prisoners housed in low or open security prisons, then those women would be subjected to fewer strip–searches than is currently the case.

It may be argued that strip–searching is justifiable to prevent women in CSUs and DUs from self–harming. However, the ADCQ queries whether the impact of strip–searching on the women involved outweighs the unsubstantiated benefits, in light of the following:

• the women prisoners’ mental health,

• their ability to recover from a mental health crisis, or

• the possibility of effective rehabilitation as a person with reasonable self–esteem when they are released into the community.

Prisons have an extremely limited ability to provide a therapeutic setting or treatment for prisoners with acute or chronic mental health problems. Repeated strip–searching of an ill or disturbed person is by no means best practice or optimal treatment for such prisoners. As outlined in 7.1 above, the DCS has recently advised the ADCQ that it has reduced the number of strip–searches performed on women in the BWCC crisis support unit. The ADCQ still has serious concerns about the number of strip–searches conducted on prisoners being held in CSU, particularly where individual prisoners are being held in CSU for lengthy periods.[126]

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7.4 Strip–searching and the ADA

Human rights protection is reflected in Queensland laws such as the ADA, which prohibits indirect discrimination in certain circumstances.[127]

According to the Act, indirect discrimination occurs when an unreasonable condition, requirement or practice (known as a term) is imposed on a person with an attribute as defined by the Act, when more people without the attribute are able to comply with the term.

A term being imposed by prison authorities is that prisoners in a secure facility, who wish to have contact visits, must be subjected to a strip–search after that visit. It could be argued that a higher proportion of female prisoners compared to male prisoners (particularly those women who have been subjected to sexual assault) are not as readily able to comply with the term.[128] The critical question which then arises is whether or not such a term is reasonable.

While the use of certain drugs continues to be illegal in Queensland, and certain prisoners are at high risk of self–harm, or pose a serious escape risk, it could be argued that the use of strip–searching is reasonable and justified, if no other forms of searching are as effective.

However, if an individual prisoner is assessed as having a low risk of escape or self–harm, routine mandatory strip–searching may not be reasonable.

Such low risk prisoners should not be accommodated in facilities where routine strip–searching is mandatory. At present these women are unjustifiably subjected to a high level of routine strip–searching solely due to the fact that they are accommodated in a secure prison.

Women prisoners accommodated in the crisis support unit are subjected to a far higher number of strip–searches than all other prisoners. It has been a term or requirement of the prison authorities that a strip–search is conducted on every female prisoner in CSU each time she leaves or re–enters her cell after being in another part of the unit or prison.[129] This means that women in these units have been routinely searched six times a day even when they have not left the crisis support unit.

There is an argument that this may be direct discrimination on the basis that many of these women are suffering a mental health impairment.

Though a number of exemptions may be raised by prison authorities to defend such an allegation,[130] this frequency of searching may also be indirect discrimination under the ADA. This is because women who are suffering from a mental health illness or impairment are much less likely to cope with frequent strip–searching, than women who are not suffering from a similar impairment. The critical question is whether or not, in all the circumstances, this requirement is reasonable.

The ADCQ is of the view there could still be a further substantial reduction in the number of strip–searches to which women in the CSU are subjected. Considering the very high levels of supervision these women are given within the unit (but outside their individual cells) a less intrusive search could be conducted on their return.

The ADCQ suggests that strip–searching may not always be necessary if women have gone to other areas of the prison where they have received constant supervision. Other less intrusive searches could, in some circumstances, replace strip–searching. [131]

Any argument that a strip–search may be reasonable in all circumstances, is predicated upon there being no equally effective viable alternative. If there are, or there comes into existence, less intrusive and humiliating but equally effective and viable alternatives that could replace strip–searches, any argument that strip–searching is reasonable in the circumstances would be nullified.

It has been suggested to the ADCQ that an alternative to strip–searching may include new technologies such as body scanning machines. The ADCQ understands these technologies are now being used in prison and detention facilities in Europe, and other jurisdictions. The DCS should fully and comprehensively examine whether such a device could safely be used in Queensland given the frequency of searches in secure prisons. If such devices are found to be effective and safe for regular use, they should immediately be made available to prisoners required to undergo a strip–search.

Other alternatives to routine strip–searching, which have been suggested to the ADCQ, are the use of full body suits or overalls worn by the prisoner during contact visits; the use of 'pat down' searches mixed with targeted strip–searching if there is a reasonable belief it is warranted; and the use of random strip–searching. Wherever possible, the objective of prison authorities should be the use of less intrusive and humiliating alternatives to routine strip–searching.

Recent changes to strip–searching in CSUs
Since the commencement of the ADCQ’s review into women in prison, the DCS has advised that it has reviewed strip–searching practices in the CSU at BWCC, which has resulted in a reduction in strip–searches.[132] As far as the ADCQ is aware no amendment has been made to the directive on strip–searching issued by the Chief Executive to reflect this change of practice. The last directive was issued on 10 April 2003. While the ADCQ commends DCS for reducing the number of strip–searches in the CSU at BWCC, it is still concerned that this change can be reversed at any time, and does not constitute a permanent department wide directive. The level of strip–searching does not appear to have changed at TWCC CSU. The change in the level of strip–searching conducted in the CSU seems to be highly discretionary depending on the management approach of influential staff at any given time. The ADCQ would be most concerned if a future change in management resulted in an increase in strip–searching. Strip–searching of distressed and vulnerable women should always be reduced to the minimum levels necessary, and this should be clearly stated in directives and instructions to staff working in the CSUs.

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Recommendations : Strip–searches

Recommendation No. 19
That prison authorities, at all times, be aware of the development and use of any new technologies or less intrusive methods of search that can replace the need for routine strip–searching in secure prisons. Any equally effective and viable but less intrusive and humiliating alternatives that are developed, should immediately replace routine strip–searching.

Recommendation No. 20
That alternative accommodation arrangements need to be made as a matter of highest priority for those women who are classified as low security but who are accommodated in high security facilities. These women are undergoing an unreasonable and unacceptable number of routine strip–searches.

Recommendation No. 21
That the Department of Corrective Services continues to review and reduce the number of routine strip–searches performed on women in the crisis support units. Further, that a new directive be issued to reflect current practice of reducing the number of strip–searches in crisis support units.

Recommendation No. 22
That the Department of Corrective Services reviews and amends its policies and practices to ensure that female prisoners are not being treated less favourably than male prisoners, in having to undergo numerous strip–searches during inter–prison visits.

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Endnotes

113.Schedule 2 of the CSA sets out the definition of each of these types of searches.
114.CSA s 26A(1).
115. Queensland Department of Corrective Services, Directions to Persons in Charge of Secure Facilities for Strip–searching of Prisoners (1 July 2001).
116.The example given in the CSA is when a pregnant prisoner returns to a secure facility from an escorted antenatal visit — CSA s 26A(3).
117.CSA s 27.
118.CSA s 26A(4).
119.CSA s 27(a).
120.Queensland Department of Corrective Services 'Searches consultation paper' Legislation Review: Corrective Services Act 2000, (October 2004) 8.
121.Corrective Services figures show that in 2003–2004 there was an average positive drug test of 4.6% across all prisons in Queensland. DCS, above n 4.
122.Corrective Services Act 2000 (Qld) ss 96, 126, 130. The DCS states that the CSA provides the power to conduct general or scanning searches of officers and a police investigation can be invoked if the General Manager reasonably suspects a corrective services officer has introduced a prohibited item into the prison.
123. Deaths in custody have been the focus of the 1991 Royal Commission into Aboriginal Deaths in Custody , and prison authorities now go to great lengths to ensure that prisoners are physically safe from self–harm while in custody. Two deaths by suicide have occurred in TWCC since 1999.
124.B A Hockings et al, above n 46.
125.A small number of women said they accepted strip–searching was a reality of prison life, and some accepted that in their view, it was an unfortunate necessity for strip–searches to occur.
126.One women ex–prisoner spoken to by the ADCQ claimed to have been held in the CSU for a period of 6 months. During this period she would have been subjected to a minimum of 1095 strip–searches.
127.ADA s 11.
128.See Beu v PR Exhibitions Pty Ltd [1997] QADT 13 (Unreported, Member Holmes, 12 May 1997).
129.See discussion about recent changes to number of strip–searches in 7.1 above.
130.ADA exemptions include inter alia public health (s107), workplace health and safety (s108), and acts done in compliance with legislation (s106).
131.The ADCQ was advised by the DCS that a review had occurred on the frequency of strip–searches in the CSU and the searches have been reduced up to 40–50%. See 7.1 above.
132. Ibid.

 

Table of Contents for Women in Prison report